States have options to go beyond CDC guidelines, Fauci says

WASHINGTON — For Americans wondering why President Barack Obama hasn’t forced all states to follow a single, national rule for isolating potential Ebola patients, the White House has a quick retort: Talk to the Founding Fathers.

A hodgepodge of state policies, some of which directly contradict Obama’s recommendations, has sowed confusion about what’s really needed to stop Ebola from spreading in the United States. While public health advocates denounce state quarantines as draconian and scientifically baseless, anxious citizens in non-quarantine states are asking whether they’re at greater risk because their governors and the president have adopted a lesser level of caution.

If public health departments across the country aren’t singing the same tune, that may be by design.

Although the Constitution empowers the federal government to isolate sick people entering the U.S. or traveling between states, it’s the states themselves that have the bulk of the authority to regulate public health in America — including the decision to enforce quarantines within their borders.

“I guess you can take that up with James Madison,” said White House spokesman Josh Earnest, referring to the fourth president and key drafter of the Constitution, when asked why there was no binding federal policy. That’s ironic, perhaps, coming from an administration that Republicans typically accuse of exceeding its legal authority on issues like immigration, health care and foreign policy.

With states and localities having broad authority to impose quarantines themselves, Earnest said the federal government’s role was to “marshal scientific evidence” for best practices to stop Ebola’s spread. On Monday, the Centers for Disease Control and Prevention did just that.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Disease at the National Institutes of Health, defended the Washington policy Tuesday, but said that states have a right “to go the extra mile” if they wish.

In an appearance on ABC’s “Good Morning America,” Fauci declined to criticize the more stringent quarantine policies implemented in New York and New Jersey by Govs. Andrew Cuomo and Chris Christie. “”They’re doing it in good faith.”

Christie said Tuesday he feels the CDC’s latest guidance is “incredibly confusing.”

“The CDC is behind on this,” he said on NBC’s “Today” show. “Governors ultimately have responsibility to protect the public health of people within their borders.”

Fauci, appearing on CNN, said the CDC guidelines are “based on the science, on what we know and how it’s transmitted.”

For the first time, the CDC recommended 21 days of isolation and travel restrictions for people at highest risk for Ebola — a nurse stuck by a needle while treating an Ebola patient in Guinea, for example — even if they have no symptoms.

But the recommendations are just that: recommendations.

States are still free to go above and beyond the CDC guidelines. And if states were to opt to be more lenient, there’s next to nothing Obama could do to force their hand.

Case in point: An order issued Friday by New Jersey, like one in New York, requires three-week quarantines for anyone who treated Ebola patients in West Africa — not just those deemed high-risk because of a needle-stick or failure to use proper protective gear. But under the new federal guidelines, those lower-risk workers merely must have their temperatures monitored twice a day.

Legal experts say New York and New Jersey could be on shaky legal ground. To justify infringing on an individual’s civil liberties, like freedom of movement, states face a high bar to prove their orders are based on science and epidemiology. Courts also like to see that states are acting as narrowly as possible rather than in broad strokes, such as lumping together everyone who treated Ebola patients even if they’re healthy.

States are still free to go above and beyond the CDC guidelines. And if states were to opt to be more lenient, there’s next to nothing Obama could do to force their hand. “We have not seen for decades and decades the state or federal government say a whole category is going to be subjected to quarantines,” said David Fidler, who teaches international and public health law at Indiana University.

In fact, such broad quarantines are almost unheard of in U.S. history. Almost always, they have been limited to diseases that are airborne and easy to catch. Public health experts say Ebola is neither.

When an influenza pandemic dubbed the “Spanish Flu” infected millions in 1918, major U.S. cities closed schools and imposed strict quarantines. New York considered quarantining tuberculosis patients in the 1990s, and isolated some who wouldn’t comply with treatment.

But as any school nurse can tell you, TB and the flu can be passed from person to person by sneezing or coughing, while Ebola requires direct contact with an infected person’s bodily fluids.

Obama and top federal officials have echoed aid groups like Doctors Without Borders in warning that mandatory quarantines will dissuade doctors and nurses from volunteering to fight Ebola in West Africa, therefore making it harder to stop the disease at its source.

But others warn of another risk to public confidence here at home: If Obama insists people without Ebola symptoms aren’t contagious while states are quarantining those same people, whom should people believe?

“What several of these governors are doing is giving very confusing and mixed messages to the public,” said Lawrence Gostin, who heads the national and global health law program at Georgetown University. “It’s an inherent problem in our federalist system. We are designed as 51-plus governments. They can speak with different voices.”

Left:
Centers for Disease Control and Prevention Director Tom Frieden (at table, from L), National Institute of Allergy and Infectious Disease Director Anthony Fauci testify before a House Energy and Commerce Oversight and Investigations Subcommittee hearing on the U.S. response to the Ebola crisis, in Washington Oct. 16, 2014. Photo by Jonathan Ernst/Reuters